My husband and I are avid DIY-ers, both because of our individual personalities and our desire to save money on things it doesn’t feel good to spend them on (e.g. minor household repairs) so we have money to spend on more enjoyable things (e.g. dinner and a show with friends). So please understand that I am all for hard work, frugality, and increasing our individual skill sets. I am also all for calling a licensed plumber, electrician, doctor, and other professionals as necessary and approrpriate. I respect and am grateful for their expertise, because there really are some things best left to trained professionals.
One of those things is estate planning or “doing your Wills.” While I don’t mean to sound like an avid supporter of Stephen Colbert’s March to Keep Fear Alive, I do want to explain what I find so scary about this. And for you immediate cynics out there, no, it is not that you might actually hold onto your hard-earned money rather than give it to me or one of my estate planning lawyer colleagues.
The bottom line is that we don’t know what we don’t know. The law is a different language. Words that we take for granted understanding in English do not always have the same meanings in the law and words that sound synonymous to lay people often have very different consequences when one is used instead of another in legal documents. There are also “terms of art” which must be taken together a certain way to accomplish what we want them to accomplish.
It’s an old joke now out of Bill Clinton’s grand jury testimony, “define is.” But while it may not make lawyers very popular or lovable when we’re angry about an apparent injustice, there’s good reason: in law, little everyday words can make a world of difference. Statutory laws differ from state to state but also law to law within our own states. The recent overhaul of the Probate Code, which governs “Wills,” here in Massachusetts is a good example of that. One misunderstood word could inadvertently change the effect of your legal document.
Additionally, there is very often more than meets the eye (great, now I have the Transformers’ song stuck in my head). What may look like a comprehensive legal document to an untrained eye may be missing some critically important pieces. And what may seem like “standard boilerplate” may actually be against your best interests. This comes up all the time with purchase and sale agreements in real estate transactions and contracts in business. That’s why there’s much more to it than “looking over” a contract or a P&S.
In law school, we spend 3 full years studying legal language and concepts, learning the major rules, and all the exceptions. The standard method of study in law school is to read and discuss case law. That is, we read all the things that went wrong and ended up in court for judges to sort out. The goal is to learn what should have happened and not fall into the same traps. We learn to “issue spot.” We practice listening to or reading a set of facts, identifying the legal and practical issues involved, and determining which set of laws and rules to apply to accomplish the desired goals for one side or the other. Then we learn to poke holes in what we just said and argue the whole thing from the other side and undo it. We become very proficient at this, sometimes to our spouses’, families’, or friends’ chagrin!
So sometimes when I look, with a trained eye, at generic form health care proxies, powers of attorney, or wills, I see costumes and ghosts. I see the things that look like one thing but are really something else, and I see the things that are just aren’t there. And I’ve read and seen what the effect of those cloaked and missing things will be in reality. I know the questions I would have asked and the decisions I would have helped my clients make to ensure their legal documents fit their personal circumstances and accomplished their goals and wishes. One size never does fit all.
My strongest objection to DIY Estate Planning is this: it provides a deceptively false sense of security. Unless you are a trained professional in this particular area, you don’t know what you don’t know and by the time your Will or Power of Attorney or Health Care Proxy or Living Will or Trust or whatever is tested, it may be too late. Your loved ones will be stuck with the mess you made but didn’t even know about because by the time these documents come into play, you’ll be incapacitated or dead.
I just want you to have the benefit of actual legal counseling and advice to enable you to make well-informed decisions. The bottom line is that you do this to protect your children and make your loved ones’ lives easier. You want to spare them from in-fighting, self-doubt about difficult decisions, and wasted time, money, and stress in managing your affairs. Given that’s why you do this, why not do it right with the help of a qualified professional?
If the answer is money, talk with your estate planning attorney of choice. I think most of us really do care and believe in what we’re doing to help people, so most of us will work with you to help make it as affordable as possible.